Can an Alabama HOA Foreclose Over Unpaid Dues?

Few HOA threats are scarier than the word "foreclosure." In Alabama, an association under the Alabama Homeowners' Association Act, Ala. Code §§ 35-20-1 to 35-20-14, has a lien for unpaid assessments, and the statute says that lien "may be enforced or foreclosed as provided in the declaration or governing documents or as provided in this section" (§ 35-20-12(a)). The Act applies to developments whose declaration was recorded on or after January 1, 2016, and to an older association only if a majority of its members elect to be governed by it (§ 35-20-3(a)). Older HOAs operate under their declaration and, if incorporated, the Alabama Nonprofit Corporation Law. Condominiums have their own lien statute, covered below. For your specific situation, a licensed Alabama attorney is the right resource. This is general information, not legal advice.

Can an Alabama HOA put a lien on my home?

Generally, yes, under the Alabama Homeowners' Association Act. Unless the declaration or governing documents provide otherwise, Ala. Code § 35-20-12(a) declares a lien on every lot for unpaid assessments from the date each is due. Within 12 months of the due date, the association must record a statement of lien, after giving at least 30 days' certified-mail notice.

"Except as may be otherwise provided in the declaration or the governing documents of an association," § 35-20-12(a) declares a lien on every lot for unpaid assessments, "arising on and from the date the assessment is due." Written notice of the assessment and lien goes to the owner "by personal delivery or first class United States mail, postage prepaid." Two further steps concern recording:

• The 12-month recording window. Under § 35-20-12(c), the association, "within 12 months from the date any assessment becomes due, shall record a statement of lien" in the office of the judge of probate of the county where the lot is located. The statement describes the lot, names the association and the owner, and lists the unpaid assessments with their dates and "the amount of any other interests and costs claimed by the association." The section doesn't say what happens if an association misses the window; that's a question for an attorney.
• The 30-day certified-mail notice. "At least 30 days prior to recording a statement of lien, the association shall give written notice by certified mail" to the owner (§ 35-20-12(d)). Whether that notice went out, and when, is one of the procedural facts a homeowner or attorney can check.

Does an Alabama HOA need a court order to foreclose?

It depends on the declaration. Under Ala. Code § 35-20-12(a), an HOA's lien may be enforced or foreclosed as the declaration or governing documents provide, or through the section's court route. There, the association files a verified complaint, and the court may enforce the lien by a sale after notice published once a week for three successive weeks.

Under the court route, the association files a verified complaint:

"An association may bring an action in a court having jurisdiction to enforce a lien declared in this section in the county where the lot is located by filing a verified complaint" — Ala. Code § 35-20-12(e)

The court "may enforce the lien by a sale of the property after the giving of notice," and notice of the sale is published "once a week for three successive weeks" in a newspaper in the county where the lot is located (§ 35-20-12(f)).

Because the declaration can set its own enforcement method, the declaration's lien and foreclosure provisions matter as much as the statute. Whether a particular community's lien would be enforced in court or by another method its documents provide is a question for a licensed Alabama attorney.

Does an Alabama HOA lien outrank my first mortgage?

Not under the HOA Act. Under Ala. Code § 35-20-12(b), an HOA's lien outranks other subsequent liens and encumbrances, but that priority does not extend to mortgages and deeds of trust securing an indebtedness. State and county ad valorem taxes, municipal improvement assessments, and UCC fixture filings are also excepted, and the section defers to Chapters 4 and 11.

Under § 35-20-12(b), the lien's priority stops short of mortgages:

"A lien declared by this section shall have priority, except as may be otherwise provided in Chapters 4 and 11, over all other subsequent liens and encumbrances except state and county ad valorem taxes, municipal improvement assessments, UCC fixture filings, mortgages, and deeds of trust securing an indebtedness." — Ala. Code § 35-20-12(b)

That ranking shapes what a foreclosure would actually reach, which is one reason homeowners and attorneys look at it early.

Can an Alabama HOA's lien cover unpaid fines?

Yes, for a fine the board assessed under Ala. Code § 35-20-11. Subsection (c) treats the amount of any such penalty as an assessment for purposes of § 35-20-12, the HOA Act's lien section, so the fine can be secured by the same lien as unpaid dues.

Section 35-20-11(c) provides that "the amount of any penalty assessed under this section shall be considered an assessment for purposes of Section 35-20-12." That makes the fine procedure — including the member's opportunity to be heard and represented by counsel (see Fighting an HOA Fine in Alabama) — higher-stakes.

Condominiums: a different lien

Associations regulated under Alabama's condominium statutes are outside the HOA Act (§ 35-20-3(b)(2)). Under the Alabama Uniform Condominium Act of 1991, § 35-8A-316 gives a condo association its own lien, and it works differently:

• Foreclosure. "The association's lien may be foreclosed in like manner as a mortgage on real estate," provided the declaration conforms to Article 1A of Chapter 10 of Title 35, and the association "shall send reasonable advance notice of its proposed action to the unit owner and all lienholders of record of the unit" (§ 35-8A-316(a)).
• Fines. Unless the declaration provides otherwise, late charges, fines, and interest charged under § 35-8A-302(a)(10)–(12) "are enforceable as assessments under this section" (§ 35-8A-316(a)).
• Priority. The lien comes ahead of other liens except liens recorded before the declaration, a first security interest recorded before the assessment became delinquent, and real estate taxes and other governmental charges. It also has a limited priority over that first mortgage for up to six months of budget-based common expense assessments, which "does not include the association's costs or attorney fees" (§ 35-8A-316(b)).
• No separate recording, but a deadline. "Recording of the declaration constitutes record notice and perfection of the lien" (§ 35-8A-316(d)), and the lien "is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due" (§ 35-8A-316(e)).

The lien section applies to condominiums created after January 1, 1991, and § 35-8A-102(a) extends it to older condominiums "only with respect to events and circumstances occurring after January 1, 1991."

Older HOAs operate differently

For an HOA whose declaration was recorded before January 1, 2016 and whose members haven't opted in, the Act doesn't apply. Any lien right turns on the declaration and general Alabama law; if the association is incorporated, the Alabama Nonprofit Corporation Law governs the entity. The § 35-20-12 steps (the recording window, the certified-mail notice, the court route) aren't statutory requirements for these HOAs, so the declaration's terms carry most of the weight — exactly what an attorney sorts out.

Why the distinction matters

For an Alabama homeowner under the 2016 Act, the practical takeaways:

• A lien is not the same as losing the home. Foreclosure follows the declaration's method or the statute's court route, where a sale comes only after three weeks of published notice.
• The 12-month recording and 30-day certified-mail notice requirements create concrete things to check.
• A records request under § 35-20-13 can reach documents reflecting the most recent assessments and amounts due (§ 35-20-13(b)(1)), and identifying information for liens and lawsuits the association is a party to that appear in a public record (§ 35-20-13(b)(10)).
• The statement of lien has to list the unpaid assessments and any other interest and costs claimed (§ 35-20-12(c)), figures that can be compared against the declaration.

For anything approaching actual enforcement, a licensed Alabama attorney is the right resource for the timeline and defenses.

Sources

• Ala. Code § 35-20-1 — Short title (Alabama Homeowners' Association Act)
• Ala. Code § 35-20-3 — Applicability of chapter
• Ala. Code § 35-20-11 — Powers of board
• Ala. Code § 35-20-12 — Liens for unpaid assessments
• Ala. Code § 35-20-13 — Records
• Ala. Code § 35-8A-102 — Applicability of the Alabama Uniform Condominium Act of 1991
• Ala. Code § 35-8A-316 — Lien for assessments